L HERMAN C CRUZ Vs. STATE OF KERALA

JUDGEMENT

(1.) This is an application by the eighth accused in Crime No. 94 of 1963 of the Poonthura Police Station for enlarging him on bail pending trial of the case. The allegation against the accused is that on 17-5-1963 accused 1 to 3 and 6 to 10 instigated the Tindal and the crew including accused 4, 5 and 11 to 13 to resist the attempt of the officers to take delivery of the rice bags which had arrived by ship S. S. Maharani at the Valiathura port, thereby impeding and delaying the means of transport of the rice bags from the boat to the Government godown and also abetted the use of criminal force against public servants. The acts, if proved, would amount to "prejudicial acts" within the meaning of R.35 Clause.6 sub clauses (i) and (o), offences punishable under R.41 Clause.5 of the Defence of India Rules, 1962.

(2.) What is contended by the learned counsel for the petitioner is, that there is excessive delegation, that the Parliament has in S.3 given power to the Central Government to make rules without laying down any guiding principle, that the Parliament has really abdicated its essential function and the delegation is so uncanalised and uncontrolled that it amounts to the setting up of a parallel legislature. It is also stated that R.155, in particular, is ultra vires and void inasmuch as the rule involves the repeal of S.496 and 497 of the Criminal Procedure Code which is a legislative power and the Central Government as a delegated authority can exercise no such power. In other words what is stated is that the power of making rules which will have the effect of repealing by implication any existing law cannot be delegated. Reliance was placed on the majority decision of the Supreme Court in In re Art.143 Constitution of India and Delhi Laws (1912), ( AIR 1951 SC 332 ) where it has been laid down that to repeal or abrogate an existing law is the exercise of an essential legislative power and the conferment of power of such wide amplitude, to make the rule inconsistent with the pre existing laws is nothing short of power to repeal.

(3.) In Harishankar Bagla v. The State of M.P. ( AIR 1954 SC 465 ), S.3 and 4 of the Essential Supplies (Temporary Powers) Act, 1946 were attacked as ultra vires on the ground of excessive delegation of Legislative power. Mahajan C. J. who delivered the judgment of the court conceded that the legislature must declare the policy of the law and the legal principles which are to control any given cases and must provide a standard to guide the officials or the body in power to execute the law. The essential legislative function consists in the determination or choice of the legislative policy and of formally enacting that policy into binding rule of conduct.